Registration No. 333-_____ As filed with the Commission on May 3, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Gaston Federal Bancorp, Inc.
(Exact Name of Registrant as Specified in its Charter)
Federal 56-2063438
(State of Incorporation) (IRS Employer Identification No.)
245 West Main Avenue
Gastonia, NC 28053-2249
(Address of Principal Executive Offices and Zip Code)
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Gaston Federal Bank 1999 Stock Option Plan
Gaston Federal Bank 1999 Recognition and Retention Plan
(Full Title of the Plans)
Copies to:
Kim S. Price Kenneth R. Lehman, Esquire
President and Chief Executive Officer Luse Lehman Gorman Pomerenk & Schick
Gaston Federal Bancorp, Inc. A Professional Corporation
245 West Main Avenue 5335 Wisconsin Ave., NW, #400
P.O. Box 2249 Washington, D.C. 20015
Gastonia, NC 28053-2249 (202) 274-2000
(704) 868-5200
(Name, Address and Telephone
Number of Agent for Service)
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If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. |X|
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to Amount to be Proposed Proposed Amount of
be Registered Registered (1) Maximum Maximum Registration Fee
Offering Price Per Aggregate Offering
Share Price
Option to Purchase
Common Stock
Common Stock, par
<S> <C> <C> <C> <C>
value $1.00 per share 190,069 shares (2) $12.00(3) $2,280,828 $634
Common Stock, par
value $1.00 per share 21,266 shares (4) $12.56(3) $267,100 75
Common Stock, par
value $1.00 per share 84,534 shares (5) $12.00(6) $1,014,408 $282
Total 295,869 shares $3,562,336 $991
</TABLE>
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Gaston Federal Bank 1999 Stock Option Plan (the " Stock Option Plan"),
and the Gaston Federal Bank 1999 Recognition and Retention Plan (the
"Recognition and Retention Plan") as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of Gaston
Federal Bancorp, Inc. pursuant to 17 C.F.R. ss. 230.416(a).
(2) Represents the number of shares currently reserved for issuance for options
granted pursuant to the Stock Option Plan.
(3) Determined by the exercise price of options pursuant to 17
C.F.R.ss.230.457(h)(1).
(4) Represents the number of shares reserved for issuance for options, which
have not been granted pursuant to the Stock Option Plan.
(5) Represents the number of shares awarded pursuant to the Recognition and
Retention Plan. (6) Determined by the fair market value of the common stock
pursuant to 17 C.F.R. ss.230.457(h)(1)
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This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
2
<PAGE>
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Stock Option Plan and the
Recognition and Retention Plan (collectively the "Plans") as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Gaston
Federal Bancorp, Inc. (the "Company") with the Commission are hereby
incorporated by reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1998 (File No. 0- 23971) filed pursuant to Rule 13a-1 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to above;
(c) the Company's definitive Proxy Statement for its Annual Meeting of
Stockholders held on April 12, 1999;
(d) the description of the common stock, par value $1.00 per share, of the
Company contained in the Company's Registration Statement on Form SB-2
(File No. 333-42951) originally filed with the Commission on December
22, 1997 and all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
Prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Kim S.
Price, President and Chief Executive Officer, Gaston Federal Bancorp, Inc., 245
West Main Avenue, P.O. Box 2249, Gastonia, North Carolina, 25053-2249, telephone
number (704) 868-5200.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
Item 4. Description of Securities
Not applicable.
3
<PAGE>
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Federal regulations define areas for indemnity coverage for federal MHC
subsidiary holding companies, as follows:
(a) Any person against whom any action is brought by reason of
the fact that such person is or was a director or officer of the savings
association shall be indemnified by the savings association for:
(i) Reasonable costs and expenses, including
reasonable attorneys' fees, actually paid or incurred by such
person in connection with proceedings related to the defense
or settlement of such action;
(ii) Any amount for which such person becomes liable
by reason of any judgment in such action;
(iii) Reasonable costs and expenses, including
reasonable attorneys' fees, actually paid or incurred in any
action to enforce his rights under this section, if the person
attains a final judgment in favor of such person in such
enforcement action.
(b) Indemnification provided for in subparagraph (a) shall be
made to such officer or director only if the requirements of
this subsection are met:
(i) The savings association shall make the
indemnification provided by subparagraph (a) in connection
with any such action which results in a final judgment on the
merits in favor of such officer or director.
(ii) The savings association shall make the
indemnification provided by subparagraph (a) in case of
settlement of such action, final judgment against such
director or officer or final judgment in favor of such
director or officer other than on the merits except in
relation to matters as to which he shall be adjudged to be
liable for negligence or misconduct in the performance of
duty, only if a majority of the directors of the savings
association determines that such a director or officer was
acting in good faith within what he was reasonably entitled to
believe under the circumstances was the scope of his
employment or authority and for a purpose which he was
reasonably entitled to believe under the circumstances was in
the best interest of the savings association or its members.
(c) As used in this paragraph:
(i) "Action" means any action, suit or other judicial
or administrative proceeding, or threatened proceeding,
whether civil, criminal, or otherwise, including any appeal or
other proceeding for review;
(ii) "Court" includes, without limitation, any court
to which or in which any appeal or any proceeding for review
is brought;
(iii) "Final Judgment" means a judgment, decree, or
order which is appealable and as to which the period for
appeal has expired and no appeal has been taken;
(iv) "Settlement" includes the entry of a judgment by
consent or by confession or upon a plea of guilty or of nolo
contendere.
4
<PAGE>
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. List of Exhibits
<TABLE>
<CAPTION>
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
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<S> <C> <C> <C>
4 Specimen form of common stock certificate
of Gaston Federal Bancorp, Inc. *
5 Opinion of Luse Lehman Gorman Pomerenk Attached as Exhibit 5
& Schick, P.C.
10.1 Gaston Federal Bank 1999 Stock Option **
Plan
10.2 Gaston Federal Bank 1999 Recognition and Retention Plan **
23.1 Consent of Luse Lehman Gorman Pomerenk Contained in Exhibit 5
& Schick, P.C.
23.2 Consent of Cherry, Bekaert & Attached as Exhibit 23.2
Holland, LLP.
24 Power of Attorney Contained on Signature Page
</TABLE>
* Filed as exhibits to the Registrant's Registration Statement on Form SB-2
(File No. 333-42951) filed with the Commission on December 22, 1997
pursuant to Section 5 of the Securities Act of 1933 and all amendments
thereto or reports filed for the purpose of updating such description. All
of such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
** Filed as exhibits to the Registrant's Proxy Statement relating to the
Registrant's April 12, 1999 annual meeting of stockholders, filed with the
Commission on March 9, 1999, which is incorporated herein by reference.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the Registration Statement not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the Stock Option Plan and the Recognition and Retention Plan; and
5
<PAGE>
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
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5 Opinion of Luse Lehman Gorman Pomerenk & Schick, A
Professional Corporation as to the legality of the
Common Stock registered hereby.
23.1 Consent of Luse Lehman Gorman Pomerenk & Schick,
A Professional Corporation (contained in the opinion
included as Exhibit 5)
23.2 Consent of Cherry, Bekaert & Holland, L.L.P.
7
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Gastonia, State of North Carolina, on this 30th
day of April, 1999.
Gaston Federal Bancorp, Inc.
By: \s\ Kim S. Price
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Kim S. Price
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Gaston Federal Bancorp,
Inc. (the "Company") hereby severally constitute and appoint Kim S. Price as our
true and lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which said Kim S. Price may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration statement on Form S-8, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Kim S. Price shall do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
By: \s\ Kim S. Price By: \s\ Gary F. Hoskins
------------------------------------- ---------------------------------
Kim S. Price Gary F. Hoskins
President, Chief Executive Officer and Vice President, Treasurer and
Director (Principal Executive Officer) Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: April 30, 1999 Date: April 30, 1999
By: \s\ David W. Hoyle By: \s\ Ben R. Rudisill, II
------------------------------------- ---------------------------------
David W. Hoyle Ben R. Rudisill, II
Chairman Vice Chairman
Date: April 30, 1999 Date: April 30, 1999
By: By:
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Martha B. Beal Charles D. Massey
Director Director
Date: Date:
<PAGE>
By: By:
-------------------------- ---------------------------
James J. Fuller Eugene R. Matthews, II
Director Director
Date: Date:
By: \s\ William H. Keith By: \s\ Robert W. Williams, Sr.
-------------------------- ---------------------------
William H. Keith Robert W. Williams, Sr.
Director Director
Date: April 30, 1999 Date: April 30, 1999
<PAGE>
EXHIBIT 5
OPINION OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.
<PAGE>
[LETTERHEAD OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.]
April 30, 1999 (202) 274-2000
Board of Directors
Gaston Federal Bancorp, Inc.
245 West Main Street
Gastonia, NC 28053-2249
Re: Gaston Federal Bancorp, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the offer and sale of Gaston Federal Bancorp, Inc. (the
"Company") common stock, par value $1.00 per share (the "Common Stock"),
pursuant to the Gaston Federal Bank 1999 Stock Option Plan and the Gaston
Federal Bank 1999 Recognition and Retention Plan (the "Plans"). We have reviewed
the Company's Charter, Registration Statement on Form S-8 (the "Form S-8"), as
well as applicable statutes and regulations governing the Company and the offer
and sale of the Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when sold in
connection with the exercise of options granted pursuant to the Plans,
will be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ Luse Lehman Gorman Pomerenk & Schick
------------------------------------------------
LUSE LEHMAN GORMAN POMERENK &
SCHICK
A Professional Corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF CHERRY, BEKAERT & HOLLAND, LLP.
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the registration statement on
Form S-8 (Gaston Federal Bank 1999 Stock Option Plan and Gaston Federal Bank
1999 Recognition and Retention Plan) of Gaston Federal Bancorp, Inc. of our
report dated October 29, 1998, relating to the consolidated financial statements
of Gaston Federal Bancorp, Inc. and subsidiaries as of September 30, 1998 and
1997, and for the years then ended, which report appears in the September 30,
1998 Annual Report on Form 10-KSB of Gaston Federal Bancorp, Inc.
/s/ Cherry, Bekaert & Holland, L.L.P.
Gastonia, North Carolina
May 3, 1999
